Prosecution
Stage 3: Approve prosecution

Submit the prosecution report to your line manager (SI in NSD)

Where the procedure for securing independent legal oversight does not apply:

• ensure the independence of the prosecution decision is nevertheless assured

Where in England and Wales, it is proposed to seek prosecution on indictment, or HSE legal costs greater than £25,000 are predicted and they are not covered by a charging regime:

• submit the report to the line manager of the usual approving officer or, where necessary, their line manager

When considering approval:

• take account of the general principles for enforcement decisions and the aims of the approval process

• ensure the EMM has been formally applied in the process of deciding to prosecute
• check, before a final decision is taken that, where applicable, the 'account holder' for a multi-site dutyholder, or another part of HSE where regulatory responsibilities for the site are shared, have been consulted and that a record has been made of the outcome of the consultation
• apply the Code for Crown Prosecutors' two stage test in strict order: only if the case meets the evidential test should the public interest test then be applied
• discuss with the investigating inspector whether additional information can be obtained if the evidential/public interest tests have not been fully met
• establish if further reasonable and relevant lines of enquiry exist
• ensure any unused material that may undermine the prosecution case or may potentially assist the defence or might be relevant to sentencing has been identified and is taken into account during approval
• decide if indictment should be proposed by assessing the seriousness of the offence and taking into account the aggravating and mitigating features given in the prosecution report

If minded to propose indictment, or indictment is thought likely to be chosen by the defence:

• discuss with line manager and Legal Adviser's Office

Performance standard

The approval officer should complete the approval process:

• within 10 working days from submission of the report

When a decision has been made:

• make a contemporaneous record on the prosecution report of the reasons for the decision

If the case appears to meet the criteria for independent legal oversight:

• seek confirmation from Legal Adviser's Office that they will accept it

If the case is accepted for independent legal oversight:

• the prosecuting inspector and the HSE lawyer work as a team
• Legal Adviser's Office procedures are now followed
• stages 4 and 5 of this procedure are not followed

If independent legal oversight is not accepted:

• ensure, nevertheless, the independence of the prosecution decision

If the case is approved: 

• record the decision on the prosecution report and on COIN

And in FOD:

• decide which actions will be undertaken by the prosecuting inspector and which by the litigation officer

go to step 4.1

If after applying the evidential and public interest tests, etc, prosecution would normally be approved but there are very exceptional circumstances relating to the proposed defendant that outweigh the general public interest factors, you may, after careful consideration, and with the agreement of your line manager:

• mark the prosecution papers "not approved, subject to acceptance of a caution"

If final decision is not to approve case:

• record the decision and the reasons on the prosecution report and on COIN
• inform dutyholder and all other stakeholders of this decision (see step 1.4) and record significant contacts

When considering approval, ensure the prosecution report:

• is in accordance with HSC’s Enforcement Policy Statement
• reflects the formal application of the EMM
• has appropriate draft charges substantiated by sufficient corroborative evidence
• is compliant with the Prosecution Code of the Crown Office and Procurator Fiscal Service
• takes account, where applicable, of the views of the 'Account Holder' for a multi site dutyholder
• includes the views of the DH or their representative
• contains a contemporaneous record of the approval oficer's reasons for their decision

If the case is approved:

• record the decision on the prosecution report and on COIN
• arrange for SCRO coding number to be obtained from police and record on COIN
• send the prosecution report to the Procurator Fiscal within 4 months of the date of the offence or the date when the offence came to HSE's notice

If the case relates to a fatal accident:

• continue to keep the Procurator Fiscal informed of HSE's developing thinking
• send a report, or a suitably qualified interim report, to the Procurator Fiscal by an agreed date, within the 3 month deadline allowed the Procurator Fiscal to report to the Crown Office

After the prosecution papers have been sent to the Procurator Fiscal:

• inform the dutyholder, any injured person(s) and any bereaved family that the report of the investigation has been sent to the Procurator Fiscal without indicating what HSE’s recommendation was and record significant contacts on COIN

   

• monitor progress of the case by the Procurator Fiscal and assist as necessary

When the court proceedings are completed:

go to step 6.1

If final decision is not to submit the report to Procurator Fiscal:

• record the decision on the prosecution report and on COIN
• inform the dutyholder and all other stakeholders of this decision (see step 1.4) and record the significant contacts on COIN